Bidyadhar Roul vs State of Orissa - 2012 Supreme(Ori) 163

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(Ori) 163

2012 (2) OLR - 157
HIGH COURT OF ORISSA
B.P. DAS AND B. K. NAYAK, JJ.
Bidyadhar Roul - Petitioner
Versus
State of Orissa and others - Opp. Parties
WP.(C) Nos. 1770, 1771, 1796, 1798, 1951, 1952, 1953, 2622, 2307, 2584, 2590, 2598, 2600, 2585, 1801, 1815, 1092, 6074, 4816, 5188, 5307, 8301 and 29715 of 2011.
Decided on : 20th April, 2012.

Advocates appeared:
For Petitioner: M/s. Pravash Ch. Jena, S. J. Das, A. Barik, A. Das, S. Dwibedi, P. K. Dhal, P. Ranjan, S. K. Das, M. K. Behera,Anita Nanda, N. Maharana, D. Mahakud, P. K. Jena, Miss. P. Das, D.P. Mohapatra, Santosh Ku. Nanda, Kalyan Pattnaik, R. Samal, S. Pattnaik, K. K. Mahanta, Niranjan Lenka, A.P.J. Nayak, A. Nayak, Mr. P. C. Acharya, S. S. Patra, P. K. Khuntia, G. N. Padhi, B. K. Sahoo, L. Samantaray, S. Swain, B. Pradhan and R. L. Pradhan.
For Opp. Parties :Additional Government Advocate M/s. P. K. Parhi, D. Rath, T. K. Satpathy, A.A. Das, A. K. Behera, B. K. Parida, S. B. Jena, S. Behera, A. Mishra, S. Soren, A. C. Mohanty, G.N. Rout,
S. K. Bhagat, A. Mohanty,

Headnote:CONSTITUTION OF INDIA, 1950 - Arts. 226 and 227 - Selection - Whether after the process of recruitment for contractual appointment started or became complete, the Government can deny appointment to the selected candidates by changing eligibility criteria for such appointment and .re-issue a further advertisement stipulating new eligibility criteria for the purpose of appointment to such posts? - Held, issuance of fresh advertisements as per the revised guidelines for filling up the posts for which process had already started and even petitioners were selected and the cancellation of earlier advertisements are arbitrary, unreasonable, illegal and unsustainable - Directions issued.
       The Government decision dated 09.07.2010 (Annexure-A/1), which is the Minutes of the meeting of Officers presided over by the Secretary, Health and Family Welfare, reveals that it was taken feeling the growing need for providing quality health care to the people that was being discussed at the Government level from time to time. It also reveals that matriculates on appointment as MPHW (M) were required to undergo training for one year, which was found inadequate to provide quality health care to the people and, therefore, it was decided to give contractual engagement to candidates having qualification of Diploma in Pharmacy against the vacant posts of MPHW (M). Clause (ix) of the decision relates to discontinuance of the practice of taking matriculates as MPHW (M) forthwith. Vide note sheet of Health Department file (Annexure-D/1), the aforesaid decision was finally approved by the Hon'ble Chief Minister on 04.11.2010 whereafter the Government Resolution No.37128/H dated 07.12.2010 (Annexure-A/3) to the counter affidavit of opposite party No.3) changing the eligibility from matriculation to Diploma in Pharmacy for appointment to post of MPHW (M) was circulated to all concerned. The said Resolution was brought into force with immediate -effect, that is to say, with effect from the date it was, issued, i.e., 07.12.2010. Neither the Minutes dated 09.07.2010 of meeting of Officers presided over by the Commissioner-cum-Secretary, Department of Health and Family Welfare, nor the Government Resolution dated 07.12.2010 stipulates that the revised criteria will have retrospective effect or that all on going selection process initiated by the C.D.M.Os as per the existing (pre-revised) norms would be stopped/cancelled. There is also no decision to cancel all advertisements issued as per the existing norms for appointment of matriculates as MPHW (M) therefore, the District Selection Committee had no authority to take a decision to cancel the advertisement under Annexure-1 and re-advertise as per the revised guidelines.
       (Paras - 12 to 15)

JUDGMENT

B.K. NAYAK, J. - The common question that arises for consideration in this batch of writ applications is whether after the process of recruitment for contractual appointment. of Multi Purpose Health Worker (Male) (in short 'MPHW(M') in World Bank supported Malaria Project started or became complete, the Government can deny appointment to the selected candidates by changing eligibility criteria for such appointment and reissue a further advertisement stipulating new eligibility criteria for the purpose of appointment to such posts.

2. The post of MPHW (M) being a District Cadre Post, the Chief District Medical Officers of the districts are competent to make recruitment for their respective districts in accordance with the norms/guidelines issued by the State Government. W.P.(C) No.6074 of 2011 is taken up as an illustrative case for description of facts and circumstances under which the aforesaid question arises.

3. The petitioners in the writ application have made a prayer for quashing the advertisement under Annexure-5 issued by the CDMO, Mayurbhanj for contractual engagement of MPHW (M), Malaria Project with a further prayer to direct the opposite parties-State authorities to issue appointment order in their favour, process for which was initiated in 'pursuance to advertisement under Annexure-1. It is asserted by the petitioners that the CDMO, Mayurbhanj (Malaria Wing) published advertisement on 27.08.2008 under Annexure-1 for contractual engagement of MPHW (M), Malaria Project and invited applications from candidates for Mayurbhanj District. The number of posts advertised was 98 and the last date of receipt of application was 08.09.2008. The qualification prescribed under the advertisement was 10th pass or equivalent examination. In pursuance to the advertisement, the petitioners applied within the stipulated time. Thereafter, vide letters dated 02.09.2010 under Annexures-2 and 2/1, the petitioners were called for verification of their original certificates/documents. After verification of documents a preliminary database was published in the district website (http://Mayurbhanj.nic.in/publicinfo.htm) vide Annexure-4 and a further notice was published inviting objections from the candidates. The petitioners, who are Scheduled Tribe persons were shown at Sl. No.11 and 17 in Annexure-3, database. It is further stated that the list was finalised and while the petitioners were waiting for appointment, the CDMO issued a fresh advertisement on 21.02.2011 vide Annexure-5 for the said posts by cancelling the advertisement under Annexure-1. In the advertisement (Annexure-5) the qualification for the post was shown as Diploma in Pharmacy from a Government recognised institution of Odisha registered with the Orissa Pharmacy Council. It is also stated in the writ application that so far as the district of Nuapada is concerned, advertisement (Annexure-7) for the post of MPHW (M) has been published in the Odia daily "The Samaj" on 01.01.2011 where the qualification has been prescribed as Class-X pass or equivalent examination. It is further stated that in the district of Balasore the persons having passed Class-X or equivalent examination were selected and they have been already given appointment. In the circumstances, it is contended on behalf of the petitioners that not giving appointment to the petitioners, who were selected in pursuance of advertisement under Annexure-1 and issuing a fresh advertisement under Annexure-5 cancelling the previous advertisement is arbitrary, unreasonable and discriminatory.

4. The Chief District Medical Officer, Mayurbhanj-opposite party No.3 has filed a counter affidavit stating that before appointment was given to the petitioners, the State Government by its letter No.3718/H dated 07.12.2010 (Annexure-A/3) issued revised guidelines for engagement of MPHW (M) specifying that the minimum educational qualification of candidates is Diploma in Pharmacy and therefore, the selection committee decided to r

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2012 Supreme(Ori) 163

Cases Referred (7)